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Thursday, June 23, 2011

Legal Minds of Pakistan

Any legal scholar picking up jurisprudence in Pakistan would be under the impression that Pakistan and India never separated. The reliance Pakistani jurists, judges and lawyers place on Indian judgements and case law is phenomenal. Indian precedents are not just persuasive – as in the case of English judgements and some American ones – but are given the status of near-law. This is hardly surprising, of course, given that most of the laws in Pakistan and India predate independence and very few, if any, have been updated in Pakistan. What is definite, however, is that Indian jurists and lawyers are certainly far superior as a whole when it comes to expounding law.
There is no question that Pakistan has produced some extraordinary lawyers, jurists, judges and legal scholars, but at the same time it may be recognised that even as a proportion, these stand out few and far between given their opposites who outnumber them. Perhaps this has something to do with the natural stage of evolution that the Pakistani society in particular and Muslim societies in general are undergoing. This society seems incapable of comprehending the true end of a legal system: the safeguard of personal, I daresay private, property.

However, there might be another angle to it. For a religious system that was once preoccupied with essentially personal law – specifically inheritance and property law –modern Islamic jurisprudence seems entirely summary today. While Arab scholars from a millennium ago played their part in enriching the legal and philosophical thought of the West, today the emphasis seems to be more pronounced on hadd punishments and blasphemy. Is it any wonder, then, that it is the only compendium of laws we have genuinely added to our statute books? Laws that seek to criminalise sin! Consequently, in any Pakistani legal manual, case law relating to zina and other hadd laws far outnumbers the pages dedicated to contract law, property law and other commercial laws.

Hindu society, by and large, has never had the sort of taboos about commerce that Muslims have had and therefore amongst Indians in general and Hindus in particular you find the field of commercial and business law developed. There is, for example, not a single decent book on securitisation written by a Pakistani lawyer, but look through any proper legal library in Lahore and you will find several by Indian authors. The finest books on such basic commercial building blocks as sale of goods, transfer of property, contract law, company law, etc, are all by Indian authors. It shows, first and foremost, the different stages of evolution of the two societies. One theory, my preferred one, is that the gap between Pakistan and India in terms of intellectual, economic and social development is roughly equal to the gap between Ram Mohan Roy and Sir Syed Ahmed Khan in terms of time.

It is quite likely that Pakistan’s existence as a separate state from India has set in motion an irreversible process of the slow but steady creation of an indigenous bourgeoisie. If this is an accurate analysis of the Pakistani condition, then perhaps much of what we complain about in this country is going to change but it is a matter of time and patience.

In the meantime, however, we have to put up with a lot of unsavoury characters who otherwise would not even be hired as munshis in a united India. This is as true of academics as it is of lawyers. Thus we find judgements such as the blanket ban on Google floating about in this day and age. One only needs to review 1993 SCMR 1718 to see the true calibre of our geniuses in their full glory.

Yasser Latif Hamdani is a lawyer. He also blogs at http://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com